Dunn v. Shamoon

BARNARD, P. J.

The defendants have appealed from a judgment in favor of the plaintiffs, the action being one for damages resulting from a collision between the respondents' ear and a truck owned and driven by a third party.

The facts out of which this action arose are as follows: The respondents were proceeding south on Highway 99 in their automobile. A short distance ahead of them and also proceeding south, was a Chevrolet truck owned by one of the appellants and driven by the other. As the two vehicles were thus proceeding a spare tire and rim, which had been mounted on the tire rack of the Chevrolet truck, suddenly fell from its rack and began bouncing on the pavement a short distance ahead of the respondents’ car. Mr. Dunn, who was driving, turned to his left to avoid striking the tire and, in so doing, collided with a Ford truck driven by a third party, which was traveling north on the same highway. The injuries complained of were caused by this collision.

[488]

The manner in which the spare tire and rim had been affixed to the Chevrolet truck is disclosed by a photograph and by testimony which appear in the record. It had been suspended underneath the rear part of the frame of the Chevrolet truck, lying on its side with the front edge higher than the rear edge, so that as it lay in the rack it sloped toward the rear. Its front edge rested upon an iron bar which was fixed in place. Its rear and lower edge rested upon another iron bar which was attached to the frame at either end by a bolt, at the lower end of which was a wing nut which could be turned with the fingers. The arrangement was such that when these two wing nuts at the ends of these two bolts were properly screwed up the tire and rim would be held in place underneath the rear of the truck.

Immediately after the accident it was found that the wing nut which had held the right end of the rear iron bar was missing, and the right end of that bar was hanging down about half way to the pavement. The lowering of this rear bar, which had sustained the rear lower edge of the spare tire and rim, had permitted the latter to drop to the pavement.

Five days before this accident a new tire had been mounted on this spare rim and the two had been placed on this tire rack of the Chevrolet truck by an employee of a tire merchant, who was experienced in mounting tires. This was done at night and partly by artificial light. While this tire man remembered that he mounted several tires on this occasion he had no recollection of whether or not he had placed this tire and rim on this truck rack. The appellants testified that during the four years they had owned and driven this truck the spare tire had never before come loose, and the tire man testified 'that, in his experience, he had never known of a tire falling from this type of rack. There is evidence that after this tire and rim was placed on the tire rack underneath this truck the truck was not used for four days. On the evening before this accident occurred the truck was driven to Oakland and the accident happened the next day, on the return trip. The driver of the truck and his companion testified that nothing had happened on the trip which called their attention to the fact that the spare tire was coming loose, and that nothing had occurred, to their knowledge, which would cause this to happen. However, no one on behalf of the appellants had examined or inspected the manner